Grant Agreement
This Grant Agreement ("Agreement") dated as of June 18, 2019, sets forth the terms and conditions agreed to by the City of Cupertino, a municipal corporation of the State of California ("Grantee"), and Apple Inc., a California corporation ("Grantor").
1. GRANT PROJECT. Apple desires to fund various transportation infrastructure and safety projects in the City of Cupertino as more fully described in Exhibit A (each, a "Grant Project" and collectively, the "Grant Projects").
2. FUNDING OF GRANT. Grantor shall fund each Grant Project ("Grant Funds"): (a) in an amount not to exceed the amount specified in Exhibit A, and (b) in accordance with the funding schedule specified in Exhibit A. If payments of Grant Funds are conditioned upon achievement of particular milestones or other required documentation, delays may occur if the milestones are not met and/or documentation is not submitted as agreed. It is expressly understood that this Agreement does not obligate Grantor to provide any additional support to Grantee for any other project or purpose other than the Grant Projects expressly provided for in this Agreement.
3. USE OF GRANT FUNDS. Grant Funds are restricted for use on the particular Grant Projects for which they have been funded as detailed in Exhibit A. No Grant Funds may be used for City staff costs or overhead. Grantor will fund Grant Projects at their actual cost up to the not to exceed amount. Any grant funds not so used for the Grant Project for which they have been funded must be returned promptly to the Grantor, or may be applied to other Grant Projects as may be mutually agreed by Grantor and Grantee and documented in writing before any such modifications become binding.
4. GRANT OVERSIGHT/AUDIT. Grantee will exercise full control over each Grant Project and will administer, manage and use the Grant Funds solely for Grant Projects. Grantor's role will consist of reasonable evaluation of Grantee's expenditure of Grant Funds. Grantee agrees to permit the Grantor, at its request, to have reasonable access to all information necessary to make such program evaluations. Grantee agrees that Grantor shall have the right to audit Grantee at any time to determine its compliance with this Agreement. During an audit, Grantee agrees that it will disclose all relevant information other than attorney client communications to Grantor to allow Grantor to assess Grantee's compliance with this Agreement.
5. GRANT REPORTING. Grantee will provide Grantor a quarterly report covering the progress and financial status of each Grant Project ("Quarterly Report"). Each Quarterly Report will include a progress update of each Grant Project, including a description of activities performed to date, challenges encountered (if any), and plans for the next quarterly reporting period. The financial reporting portion of each Quarterly Report will include a summary of expenses against the budget for each Grant Project and any remaining balance. Upon request, Grantee will provide Grantor with informal program updates. For each completed Grant Project, Grantee will include a final accounting of how the Grant Funds were spent as compared to the applicable budget.
6. RELATED PARTIES. Grantee agrees that its staff, elected officials, agents, employees and contractors (or any related party) will not receive any financial benefit as a result of this Agreement.
1. NO WARRANTY. Grantor makes no representations or warranties about the quality, sufficiency or legal compliance of any Grant Project, including, without limitation, any plans or specifications for any Grant Project. Each Grant Project shall at all times be deemed to be a Grantee project and Grantor shall have no obligation to design, construct, maintain, repair or replace any portion of any Grant Project.
8. INDEMNIFICATION AND HOLD HARMLESS. Grantor shall not be liable for any acts or omissions in approving, reviewing, checking, correcting, constructing or modifying any Grant Project or any related specifications. In consideration of Grantor proving the Grant Funding, Grantee agrees to indemnify, hold harmless, release and forever discharge Grantor, its officers, agents, employees, contractors and affiliates from and against any and all judgments, actions, claims, suits, losses, damages, and expenses resulting from, related to or in any way connected with this Agreement, including, without limitation, any claims, actions, or demands arising out of the design, construction, maintenance and operation of any Grant Project. This indemnification obligation shall survive any termination of this Agreement.
9. TERMINATION. Either party may terminate this Agreement following a breach of a material provision of this Agreement, whether by action or inaction, which continues and is not remedied within thirty (30) days after the non-breaching party has given notice specifying the breach. Grantor may also terminate this Agreement at any time following Grantee's adoption of new fees or taxes that apply at different rates and/or amounts depending on the revenue or employee count of the business or property owner or that would have a disproportionate effect on Grantor. Grantor shall have no obligation to make any additional payments or provide any of the other benefits set forth in this Agreement following termination.
10. EQUITABLE RELIEF. Grantee agrees that Grantor will have the right to seek and obtain immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.
11. NO ASSIGNMENT. This Agreement may not be assigned by Grantee by any means, including without limitation, by operation of law or merger. Any attempted assignment of this Agreement by Grantee in violation of this section will be void.
12. PUBLICITY. Grantee will not use (or permit its personnel to use) Grantor trademarks, service marks, trade names, logos or other commercial or product designations for any purpose without the express prior written approval of Grantor.
13. GRANT RECORDS. Grantee agrees to maintain records of receipts and expenditures and make its books and records available to Grantor at reasonable times upon its request, which shall be adequate to identify the use of the funds in compliance with this Agreement. Such records shall be retained for a period of at least four (4) years after the completion of the use of the payments received from Grantor.
14. REQUIRED NOTIFICATION. Any notices delivered pursuant to this Agreement and all other communications shall be in writing and shall be given to the appropriate party at the address set forth below or at such other designation as from time to time may be specified hereunder. All notices and other communications shall be deemed given: (a) upon personal delivery to the appropriate address; (b) three (3) business days after the date of mailing if sent by certified or registered mail; or (c) one (1) business day after the date of deposit with a commercial courier service offering next business day service with confirmation of delivery. Notices and communications shall be addressed as follows (or to such other address as a party designates in writing from time to time):
To Grantor: To Grantee:
Apple Inc. City of Cupertino
One Apple Park Way, Ms 119-RE 10300 Torre Avenue
Cupertino, CA 95014 Cupertino, CA 95014
Attention: Real Shat Deudopment Attention: Deborah Feng, City Manager Phone: Phone: 408.777.2489
Email: Tarp RE [email protected] Email: [email protected] 3 15. GOVERNING LAW. All questions of law which may arise in the administration of this Agreement shall be determined in accordance with the laws of State of California.
16. MODIFICATION. This Agreement sets forth all of the terms of this grant and replaces all prior understandings and agreements. This Agreement may only be changed or modified with the express written consent of the Grantor and Grantee.
Each signatory to this Agreement represents and warrants that he or she possesses all necessary capacity and authority to act for, sign and bind the party on whose behalf he or she is signing this Agreement.
IN WITNESS WHEREOF, Grantee and Grantor have signed this Agreement.
Grantee: Grantor:
City of Cuperting Apple Inc.
y: Me. AL
Name: Deborah Feng Jame. Meliss Schil
Title: City Manager Title: Directur, Global Real Estate Date: Date: 7/26/19
APPROVED AS TO FORM:
HEATHER M. MINER
Cupertino City Attorney
ATTEST:
Gradhuket
GRACE SCHMIDT 8-1319
City Clerk
4 Exhibit A - Grant Projects
Project Name Description Not to Exceed Amount Funding Schedule McClellan Rd Phase II: Construction of Funding Schedule 1* Protected Bikeway separated bikeway from $1,000,000
Bryne Ave to Imperial Ave
Funding Schedule 1
McClellan Rd Phase Ill: Construction of $1,000,000
Protected Bikeway separated bikeway from
Stelling Rd to Torre Ave
Junipero Serra Trail Construction Design $1,800,000 Funding Schedule 1 Planning/Design: Class IV
bike lanes, sidewalks, Funding Schedule 1
Bubb Road Project $136,590
pedestrian refuges,
enhanced striping etc.
Construction & Funding Schedule 1
Bubb Road Project $1,843,965
Contingency
New concept: two-way on
street bikeway/cycletrack Funding Schedule 1
Mary Ave Protected Bikeway from Stevens Creek Blvd.
$165,000
to Mary Ave Bike/Ped
bridge.
Design & construct
McClellan Rd Sidewalk sidewalk improvements
Improvements between Orange Avenue $2,035,000 Funding Schedule 1 and San Leandro Avenue.
Design construct
approximately 650 LF ol
McClellan Rd Sidewalk sidewalk on the north side
of McClellan between $430,000 Funding Schedule 1
Installation
HWY 85 and Rose
Blossom.
De Anza Blvd/McClellan
Traffic signal upgrades. $160,000 Funding Schedule 1
Pacifica Signal Modification
*Note - Funding Schedule 1 is defined at the end of this Exhibit A Exhibit A - Grant Projects
School Walk + Safety Projects
Abraham Lincoln Elementary School/Monta Vista High School Grant Project Description Schedule
Add advance yield lines. Construct curb ramp
and sidewalk in NW corner. Study sight lines
Bryne Ave @ McClellan Road Funding Schedule 2*
and consider additional advance warning
stencils if crosswalk is obstructed by slope
McClellan Road at Orange Ave Funding Schedule 2
Lincoln Elementary Uncontrolled
Crosswalk Funding Schedule 2
easemen hi he intersection wil sembly B
McClellan Road at Imperial
Avenue Funding Schedule 2
Widen sidewalk on west side Fort Sidewalk widening (additional width 5), Baker Drive between Presidio retaining wall, and fence relocation Funding Schedule 2 Drive
Hyannisport Dr at Fort Baker Reconstruct intersection to close slip lane onto Drive Fort Baker Drive Funding Schedule 2
Sam H. Lawson Middle School
Grant Project Description Funding Schedule
Conduct traffic study along Mariani Funding Schedule 2
Mariani Avenue/Infinite Loop Avenue/Infinite Loop. Convert transverse crosswalk to yellow high-visibility crosswalk.
Merritt Drive/Larry Way/Vista Install in-street school crossing signs (R1-6) in Funding Schedule 2 Drive the crosswalks across Merritt Drive.
Install KEEP CLEAR markings in both Funding Schedule 2
Apple Tree Lane/Vista Drive northbound and southbound directions of the intersection. Install in-street school crossing
sign in the crosswalk across Vista Drive.
Vista Drive Install Class III Bike Route signage and Funding Schedule 2 marking (sharrows)
*Note - Funding Schedule 2 is defined at the end of this Exhibit A Exhibit A - Grant Projects
Sedgewick Elementary School
Grant Project Description Funding Schedule
Shift crosswalk across Phil Lane to make x- Funding Schedule 2 Phil Lane/Finch Ave
walks perpendicular. Install ADA-compliant
Tilson Avenue/Tantau Avenue Funding Schedule 2
Funding Schedule 2
Zone During School Hours signs on south side
of Phil Lane between western drop-off loop
driveway and Tantau Avenue. Refresh red curb
Phil Lane Drop-Off
Install ADA-compliant curb ramps. Install Funding Schedule 2 Phil Lane/Tantau Ave detectable warning surface at either end of median refuge
Funding Schedule 2
Tantau Ave/Barnhart Ave
Hyde Middle School
Grant Project Description Funding Schedule
Conduct stop sign warrant analysis for Hyde Funding Schedule 2 Shadygrove Drive/Hyde Avenue Crossue apreach steal into in vibity Install yellow high-visibility crosswalk. Funding Schedule 2 Disney Lane/Miller Avenue Remove Stripe/Legend
Willowgrove Lane/Hyde Avenue Install curb extensions with ADA-compliant Funding Schedule 2 curb ramps on both sides of intersection
Install yellow high-visibility crosswalks on all Funding Schedule 2 Bollinger Road/Miller Avenue legs of intersection. Remove Stripe/Legend Hyde Avenue/Bollinger Road Funding Schedule 2
Trim vegetation on Bollinger Road
Exhibit A - Grant Projects
Garden Gate Elementary School
Grant Project Description Funding Schedule
Funding Schedule 2
School Drop-Off hrough parking lot. Install ADA-compliant curb ramps at either end of walkway.
Greenleaf Drive School Frontage Funding Schedule 2
access gate during drop-off/pick-up. Consider
removing parking on the north side of curve.
Flora Vista Avenue/Greenleaf Funding Schedule 2
Drive
Stelling Road/Greenleaf Drive Study pedestrian signal timing Funding Schedule 2 'onduct crossing guard warrant analysis fo Funding Schedule 2 Castine Avenue/Greenleaf Drive outhbound Castine Avenue. Install viel markings on Castine Avenue
Ann Arbor Avenue/Greenleaf Funding Schedule 2
Drive Install curb extension and ADA-compliant
curb ramp at crosswalks
Install yellow high-visibility crosswalks and Funding Schedule 2 yield markings across Grenola Drive and
Hazelbrook Drive. Trim landscaping. Conduct
Ann Arbor Avenue
Close sidewalk gaps
Homestead High School
Grant Project Description Funding Schedule
Install hi-viz x-walks at crossings. Reconstruct Funding Schedule 2 SW corner to tighten turning radius. Install
ner ramp. All b. pact west of intersection
shelter to connect to Mary Avenue Bridge
General path. Reduce vehicle lane widths to 11' to
convert existing bike lanes to buffered bike
lane. Add flexible delineators in buffer space.
Consultant for all-red pedestrian phase-$5,000.
Make western driveway right-in, right out.
Add exible delineators on Homestead Rd t
Exhibit A - Grant Projects
block vehicles from turning left out of parking
lot.
Pave informal path to allow for safer bicycle Funding Schedule 2 Bicycle Safety
access.
L.P. Collins Elementary School
Grant Project Description Funding Schedule
Install ADA-compliant curb ramps. Install Funding Schedule 2 high-visibility crosswalks. Conduct traffic
Merritt Drive/Blaney Avenue signal warrant analysis and evaluate a roundabout.
Blaney Ave/Pear Tree Lane Install ADA-compliant curb ramps. Install Funding Schedule 2 School Assembly B signage.
Install yellow high-visibility crosswalks on all Funding Schedule 2 legs of
Forest Avenue/Plum Tree Lane Intersection. Install yield sign and yield line on Toni Court. Install yield lines prior to
crosswalks on Forest Avenue.
Forest Avenue/Blaney Avenue Install curb extension on southwest corner. Funding Schedule 2 Install green conflict striping in bikes lanes. Funding Schedule 2 School Frontage Extend detectable warning surface along drop- off area.
Install yellow high-visibility crosswalk across Funding Schedule 2 Blaney Avenue/Twilight Court
Twilight Court. Install School Assembly B
signage.
Install swing gate at "Staff Parking Only" Funding Schedule 2 marking area (to be closed during school
Bright Horizons Parking hours). Install yellow high-visibility crosswalk Lot/Portal Avenue at Portal Avenue/Amherst Drive. Install One Way signage at entry and exit driveways to
mimic school frontage parking lot.
William Faria Elementary School
Grant Project Description Funding Schedule
Scofield Drive/Barbara Lane Study feasibility of crossing guard Funding Schedule 2 Reconstruct driveways to city standards. Funding Schedule 2 Install truncated domes on either side of
School Drop-Off driveway at sidewalks. Widen sidewalk at southern end to approximately 15 feet. Remove
pole at exit driveway, south side. Remove red
Exhibit A - Grant Projects
curb at southwestern corner. Install "Vanpool
Parking Only" signs at southwestern corner.
Install yellow high- visibility crosswalk across. Funding Schedule 2 Pepper Tree Lane. Install Leading Pedestrian/
Pepper Tree Lane/Stelling Road Interval with 5 second. Lead time for all legs of intersection
Study feasibility of crossing guard. Install Funding Schedule 2 Pepper Tree Lane/Barbara Lane school assembly B signage. Install red curb from light pole to driveway.
Shelly Drive/Bonny Drive Install high-visibility crosswalk across Shelly Funding Schedule 2 Drive. Conduct yield sign warrant analysis
Stevens Creek Elementary School
Grant Project Description Funding Schedule
Bahl Street/Ainsworth Drive Conduct crossing guard study Funding Schedule 2 Install high-visibility cross-walk across Vista Funding Schedule 2 Vista Knoll Boulevard/Bahl Street
Knoll Blvd. Install ADA-compliant curb ramp.
Install KEEP CLEAR marking in intersection
Ainsworth Dr/Vista Knoll Blvd. Install red curb between curb ramp and Variar Funding Schedule 2 Way. Conduct stop sign warrant analysis or
Vista Knoll Blvd
Improve existing speed bump Funding Schedule 2
Varian Way Ensure vehicle gates in Varian Park parking lot are closed at all times
Install red curb north of parking
Regnart Elementary School
Grant Project Description Funding Schedule
bidewalk widening by 5ft for 400LF. Instal Funding Schedule 2 General red and auter apo el size redivooc
Yorkshire Drive Install concrete paths between sidewalk and Funding Schedule 2 gates
Regnart Road/Bubb Road Funding Schedule 2
Road ngs on cth and sof eroswal on Bubb
Funding Schedule 2
Yorkshire Drive/Yorkshire
Drie by foroximer y reom ordil eway
Court
Exhibit A - Grant Projects
Left Turn sign to discourage left turns into
driveway.
Belknap Drive/Yorkshire Funding Schedule 2
Install curb extension on southeastern corner
Drive
Cupertino High School
Grant Project Description Funding Schedule
Reconfigure intersection to tighten radius on Funding Schedule 2 Stevens Creek Boulevard/Finch yellow high-visibility crosswalks on east side Avenue
and south side of intersection. Long term: Install
protected intersection and bicycle signal with
Lead Bicycle Interval when separated bikeway
is installed along Stevens Creek Boulevard
Finch Avenue/Sorenson Avenue Funding Schedule 2
and Finch Avenue/Craft Drive Install ADA-compliant curb ramps Southern Parking Lot Install raised pedestrian walkways across Funding Schedule 2 driveways and reconfigure curbs
Study traffic signal timing to add protected left- Funding Schedule 2 Miller Avenue/Calle de Barcelona turn phase onto Calle de Barcelona from Miller Widen sidewalk between Tilson Avenue and Funding Schedule 2 Finch Avenue emergency access gate north of the baseball field to approximately eight feet
Install KEEP CLEAR marking in intersection. Funding Schedule 2 Move crosswalk/stop sign closer to Finch
Calle de Barcelona/Finch Avenue Avenue. Install curb extensions and ADA- compliant curb ramps at crosswalk across Finch
Avenue clearing and grubbing)
Eaton Elementary School
Grant Project Description Funding Schedule
Pacifica Drive/Whitney Way Install speed limit sign east of Whitney Way Funding Schedule 2 Install sign
Suisun Drive/Farallone Drive Replace school Assembly Sign with stop sign on Funding Schedule 2 Suisun Drive
Exhibit A - Grant Projects
Remove "State Law Yield to Pedestrians in
Crosswalk" sign
Farallone Drive Funding Schedule 2
Raised Crosswalk
Farallone Drive Parking Lot Funding Schedule 2
Convert some eastern parking spaces to loading
zone
John Drive/Farallone Drive Install red curb on east side of Farallone Drive Funding Schedule 2 south of parking lot driveway
Install yield sign on La Roda Drive. Install high- Funding Schedule 2 La Roda Drive/Suisun Drive
visibility crosswalk on La Roda Drive
Install ADA-compliant Type F curb ramp Funding Schedule 2 Blaney Avenue/Suisun Drive north of driveway and south of re hydrant Pivot eastern end of southern crosswalk to
connect to new ramp
John F. Kennedy Middle School
Grant Project Description Funding Schedule
Presido Drive and Bubb Road Conduct STOP sign warrant analysis on Bubb Rd Funding Schedule 2 at Presidio Dr.
Shannon Court, Bubb Road, Trim overgrown tree on west side of Bubb Rd. Funding Schedule 2 Hyannisport Drive Install yellow high-visibility cross-walk w/ advance stop
line across Shannon Court
Holly Oak Drive/Bubb Road nstall yellow high-visibility crosswalk wit Funding Schedule 2 dvance stop line across Holly Oak Drive
Eastern School Drop-Off Install Pull Forward signage at driveway Funding Schedule 2 entrance. Repave & widen pathway from
sidewalk to
school entrance to at least eight feet. Trim
landscaping on Bubb Rd at driveway exit.
Pumpkin Drive/Bubb Road Install yellow high-viz walks with advance stop Funding Schedule 2 lines
"Funding Schedule 1" shall be as follows:
Grantor shall fund Grant Projects being funded pursuant to Funding Schedule 1 as follows:
(a) the first one-third (1/3) of the Not to Exceed Amount shall be funded within sixty (60) days from the date that: (1) Grantee has obtained all applicable approvals for this Agreement, (2) this Agreement has been mutually executed, and (3) Grantee certifies to Grantor that the Grant Project for which funds are being requested has been approved by the City Council;
Exhibit A - Grant Projects
(b) the next one-third (1/3) of the Not to Exceed Amount shall be funded within sixty (60) days following commencement of construction on the applicable Grant Project; and (c) the final one-third (1/3) of the Not Exceed Amount shall be funded sixty (60) days from the date that: (1) the applicable Grant Project has achieved substantial completion, and (2) Grantor has received reasonable back-up documentation evidencing such completion as well as the total amount spent for the specific Grant Project for which funding is being sought.
For the final one-third of any Not to Exceed Amount for any Grant Project being funded pursuant to Funding Schedule 1, if Grantee spends less than the total Not to Exceed Amount for such project, Grantor shall fund Grantee the lesser amount necessary to reimburse Grantee, or the unused funds may be applied to other Grant Projects as mutually agreed by Grantor and Grantee and documented in writing before any such modifications become binding. "Funding Schedule 2" shall be as follows:
Grantor shall fund an amount not to exceed One Million Two Hundred Twenty-One Thousand Eight Hundred Sixty- Three Dollars ($1,221,863) for the School Walk and Safety Grant Projects listed in this Exhibit A (the "SWSP Not to Exceed Amount").
Grantor shall fund the SWSGP Not to Exceed Amount as follows:
(a) one half (1/2) of the SWSGP Not to Exceed Amount ($610,931) within sixty (60) days from the date that: (1) Grantee has obtained all applicable approvals for this Agreement, and (2) this Agreement has been mutually executed, and (3) Grantee certifies to Grantor that a School Walk and Safety Grant Project has been approved by the City Council; and (b) up to the second one-half (1/2) of the SWSP Not to Exceed Amount ($610, 932) within sixty (60) days from the date that: (1) all of the School Walk and Safety Grant Projects listed above have achieved substantial completion, and (2) Grantor has received reasonable back-up documentation evidencing such completion as well as the total amount that Grantee actually spent for the School Walk and Safety Grant Projects.
For the second one-half of the SWSP Not to Exceed Amount, if Grantee spends less than the total SWSGP Not to Exceed Amount, Grantor may fund Grantee the lesser amount necessary to reimburse Grantee, or the unused funds may be applied to other Grant Projects at the discretion of the Grantor. In addition, from time to time, Grantor and Grantee may discuss adjustments to the School Walk and Safety Grant Projects listed in this Exhibit A with any changes or modifications to be mutually agreed by Grantor and Grantee and documented in writing before any such modifications become binding.